[1981] UGCA 4

IN THE COURT OF APPEAL AT KAMPALA

(conam: Muscke, P., Lubogo, V. P., Nyamuchoncho, J. A.)

inello au CIVIL APPEAL NO. 5 OF 1981

ding ing

the to counted

$-1111$

$31000$

BETWEEN $\sim$ 1 bit is indicated about the set of $\mathbb{Z}$ $\mathbf{a} \cdot \mathbf{a} = \mathbf{a} \cdot \mathbf{a}$ <pre>print . . . APPELLANT</pre> ASSOCIATED ARCHITECTS . . . . . . . . . . $20(t)$ yas fire. $\cdots \longrightarrow \cdots \longrightarrow \cdots \longrightarrow \cdots \longrightarrow \pi$ AND I and Loude with matter $\mathbb{P}^1$

The set of the RESPONDENTS CHIRISTINE NAZZIWA . . . . . $\cdots \cdots$ $\{1,2\} \cup \{1,1\} \cup \{1,2\} \cup \{1,2\}$

> (Appeal from the Judgment and decree of the High Court of Uganda (Kantinti dated $4.5.81$ $4n$ swaliacht #1 High Court Civil Suit No. 360 of 1980

> > JUDGL... T OF THE COURT

The High Court found the appellant, a firm of architects, liable in negligence when its metor vehicle, which was being drives by its servant and in which the two respondents were passengers, overturned and they suffered injuries. The first respondent is the mother of the second respondent, a boy of 2% years old. General damages of Shs. 40,000/mo and Shs. $600,000/-$ were awarded to the first and second respondents respectively. In making these awards the trial judge relied, as to the injuries suffered by each respondent, on the evidence of the first respondent and that of Dr. Yiga as well as the medical reports compiled by Dr. Yiga and Mr. Kiryabwire, F. R. C. S.

Before we discuss the merits of the appeal we would like to comment on the unsatisfactory procedure by which Mr. Kiryabwire's medical repport was tendered in evidence under section 30(b) of the Evidence Aat. After Dr. John Yiga (P. W.1) had given his evidence, he was asked to identify Mr. Kiryabwire's medical report under section 30(b) of the Act. After the witness had stated that he knew Mr. Kiryabwire's signature without even identifying it, Mr. Kityo, counsel for the respondents, submitted Mr. Kiryabwire's report under section 30(b) of the Act on the grounds that the witness's attendance could not be procured without great expense.

It would.../2

It would appear that the report was admitted by the court and marked $\mathcal{L} = \mathcal{L}$ Exh. P. 2(B) without a further question, though the record is silent about it.

It is our considered opinion that the reception of Mr. Kiryabwire's report without an inquiry as is required by section 30(b) was irregular. In Muzamiri Kisingo and another v. Sanyu Birabwa, Civil Appeal No. I of 1980, this Court had an occasion to consider the conditions which make section 30(b) of the Act applicable. The securt said:

$\mathbf{A} \bullet \mathbf{A}$ "It is the duty of the panty seeking to tender the witness's statement to satisfy the Court by evidence that the witness cannot be found or his attendance cannot be procured without an amount of eleg.delay or expense which in the circumstances of the case appear to the court to be unreasenable".

In this case no such evidence was led. The court had no material upon which it could exercise its discretion to receive the report. Without such evidence the medical report was wrongly admitted. It should be excluded. Section 30(b) of the Act should be used very sparingly and only in circumstances falling within the purview of that section. After considering the other evidence, however, we are of the view that the view exclusion of Mr. Kiryabwire's medical report would have no effect on the result of the case. It is not materially different from the report of Dr. Yiga. The purpose of referring to it here is to emphasize the fact that the trial judge should always insist that the law as laid down in section 30(b) should be compiled with before accepting any document under this section. . . . . . . . . . . . . . . . . . .

The evidence of the first respondent and that of Dr. Yiga as well as his report shows that the first respondent suffered other minor injuries in the accident, and that as the time of the hearing of the suit these injuries had healed without complications, and her permanent disability was assessed at 5%. The second respondent, however, had suffered very severe brain damage with loss of vision and hearing with ne chance of his recovery. His permanent disability was assessed at 90% re The suit was heard or parte. Journal of the state of the rate of the rate ι,

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At the hearing of the appeal Mr. Kakungulu, counsel for the appellant, abandoned the grounds of appeal on the question of liability and arguedonly those grounds of appeal on the question of damages. Counsel's main contention was that the judge did not scrutinize the. medical evidence contained in the reports of Dr. Yiga and Mrt. Kiryabwire, and had therefore failed to evaluate it with the result that the damages awarded were excessive, and not in line with awards in comparable cases. He argued further that in the case of the first award the judge had relied on the case of Miriam Namigugu v. Indukumar Majithia, HCCS 496 of 1969, which was inapplicable because the injuries in that case were more serious than the present case; and that in the case of the second award he had relied on wrong and misleading authorities, like Ronald Gala v. James Kato, HCCS No. 1322 of 1978, and George William Bibi v. Eastern Province Bus Company, HCCS No. 398 of 1969 (Eastern Province Bus Co. v. Bibi (1971) E. A. 370) which were cited by Mr. Kityo.

It must be borne in mind that when considering the question of reversing a trial judge on the amount of damages awarded we are not, as an Appeal Court, entitled to interfere with the award merely-because it is probable that if we had tried the case we would have awarded a different figure. We can only interfere if we are satisfied that in assessing the damages complained of "the judge acted upon some wrong principle of law, 'or that the amount awarded was so extremely high or so very small as to make it, in the judgement of this Court, an entirely erroneous estimate of the damages to which the plaintiff is entitled". These principles, enunciated by the Court of Appeal in England in Flint, v. Lovell (1935) 1 KB at page 360 and adopted by the Court of Appeal for Eastern Africa in Kungo sto Marumba and Another v. Clark (1952) 19 EACA 60 were since then consistently followed by our immediate predecessor, the Court of Appeal for East Africa. We have read the authorities (with the exception of Namigugu's case) which, according to Mr. Kakungulu, influenced the judge in making the awards complained of; and we have considered these awards in the light of those authorities and the evidence before the court and we reject Mr. Kakungulu's contention that the judge was unduly

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influenced by those authorities. The learned judge considered all the $::r$ evidence before him and gave cogont reasons for making the awards. As to the first award he took into consideration the likelihood of development of esteo-arthritis and the dwindling value of our money; and as $\mathcal{A} = \mathcal{A} \oplus \mathcal{A}$ regards the second award the judge had this to say:

> "It is obvious from the available medical evidence that Franco Magoba, the 2nd plaintiff, has suffered irreparable injury. No amount of award can fully compensate this child. As Kityo said he is a living vegetable. He. cannot see or hear, he cannot sit or stand or feed himself. He will always depend on some assistance for his existence. I have considered all aspects of this case and also the cases cited. I have also not been able to find a case which is on all fours with this one".

In short, the accident has completely ruined the life of this boy. We are satified that although on the face of them the awards are high, . they are not so high as to justify this court's intefference. The appeal $370$ Mag $370$ is accordingly dismissed with costs.

DATED AT KAMPALA THIS 1st DAY OF DECEMBER 1981. $\cdots:$

> D. L. K. LUBOGO **VICE PRESIDENT**

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P. NYAMICONCHO MUSTICE OF APPEAL

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SAULO MUSOKE 17

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PRESIDENT

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$\mathbb{E}_{\mathcal{F}}(x) = \mathbb{E}_{\mathcal{F}}(x)$ $\mathcal{L}^{(2)} = \{027.3, \mathcal{L}_{\text{H}}^{(1)}\}$ $\ldots, \ldots$ Mr. Kakungulu of M/s. Musoke & Company Advocates for appellant. $\mathcal{L}(L) = \mathcal{L}(L) \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L}$ $\mathcal{L} = \mathcal{L}$ $\gamma$ Mr. Kityo of M/s. Kityo & Company Advocates for respondents.

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